Law versus Democracy: Reputation Costs, Judicial Alliance Networks, and Democratic Erosion in Turkey

45 Pages Posted: 13 Jun 2023 Last revised: 30 Aug 2023

Date Written: August 28, 2023

Abstract

Conventional wisdom holds that independent judiciaries protect democracies from backsliding. I instead argue that courts can enable democratic erosion depending on their alignment with voters and networks with elite allies. Whereas existing theories model the judiciary’s strategic interaction with the executive and legislature, I add that executive-judicial conflicts occur in front of an influential audience: voters. Adapting the concept of “audience costs” from international relations, I develop a formal model in which executive-judicial conflict is institution-enhancing when judicial sanctions impose a “reputation cost” on politicians but institution-eroding when judicial penalties give politicians a “reputation benefit.” Findings from an original dataset of 3,000 decisions issued by Turkey’s Constitutional Court suggest that two features of judicial alliance networks pull courts out of alignment with voters and into the institution-eroding equilibrium. First, judicial networks with partisan allies engender a spiral of institution-eroding conflict, in which the judiciary’s ties with one party lead to polarization and unpopular judicial decisions. Furthermore, networks with unelected allies, such as indirectly elected heads of state, provide courts with the independence to rule against popular governments. Yet these alliances undermine the judiciary’s legitimacy, as courts become less willing to hold unelected allies accountable.

Keywords: Democratic erosion, judicial politics, political polarization, rule of law, democratic backsliding, political institutions

Suggested Citation

O'Donohue, Andrew, Law versus Democracy: Reputation Costs, Judicial Alliance Networks, and Democratic Erosion in Turkey (August 28, 2023). Available at SSRN: https://ssrn.com/abstract=4465840 or http://dx.doi.org/10.2139/ssrn.4465840

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